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Topic: "Privacy" | Main

Employee bathroom surveillance camera, although faulty, could be invasion of privacy
December 27, 2011 by Ross Runkel at LawMemo

You can't think this up: Bathroom surveillance camera.

Koeppel v. Speirs (Iowa 12/23/2011).

Koeppel sued the employer for invasion of privacy and sexual harassment. The trial court granted the employer's motion for summary judgment. The Iowa Court of Appeals affirmed on the sexual harassment claim and reversed on the invasion of privacy claim. The Iowa Supreme Court affirmed the court of appeals.

The employer placed a camera in the unisex bathroom. The issue of first impression, proof necessary to establish unreasonable intrusion of the invasion-of-privacy tort, required the court to develop a standard for the jury to apply in determining when electronic devices intrude into privacy.

Nationally, courts are divided on whether installation of surveillance equipment in a private place or whether actual viewing and/or recording triggered the intrusion.

The Iowa Supreme Court determined that a standard involving installation was more consistent with the spirit and purpose of the protection of privacy. Because the parties disputed whether the equipment was capable of exposing Koeppel's activities in the bathroom, the court stated that evidence the camera was capable of operation and had operated in the past from a different location in the office met the standard.

The court concluded, "[a]n electronic invasion occurs under the intrusion on solitude or seclusion component of the tort of invasion of privacy when the plaintiff establishes by a preponderance of evidence that the electronic device or equipment used by a defendant could have invaded privacy in some way."



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Employer not required to tell class counsel which job applicants had marijuana convictions
April 26, 2011 by Ross Runkel at LawMemo

Hoist by their own petard.

Starbucks Corp v. Superior Ct (California Ct App 04/25/2011):

Three job applicants brought a class action claiming that the employer's job application form violated a statute which prohibits employers from asking about minor marijuana convictions that were more than two years old.

The suit sought $26 million in statutory penalties on behalf of 135,000 applicants.

In 2008 the Court of Appeal held that plaintiffs did not have standing to represent the proposed class because none had any marijuana convictions to reveal. The trial court then permitted plaintiffs to file an amended complaint dealing only with applicants with convictions. The class was now headless because plaintiffs' counsel knew of no qualified person to represent the class.

To aid plaintiffs' counsel's quest for a previously-convicted applicant, the trial court issued a discovery order requiring the employer to randomly review job applications until it identified job applicants with prior marijuana convictions. Their names would be forwarded to a neutral administrator who would draft an "opt-out" letter to their last known address, explaining the litigation, and requiring them to affirmatively assert their privacy rights to prevent their names from being forwarded to plaintiffs' counsel.

In the second appeal, the Court of Appeal reversed. The court said that the discovery order would impair the exact privacy interests of the job applicants that the statute sought to protect.

"One can only imagine the potential consternation in a household where a Starbucks applicant with a marijuana-tinged past is 'outed' to a spouse, child, or roommate who opens the letter and reads about a lawsuit involving job applicants with prior marijuana convictions."


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SCOTUS: NASA background check is constitutional
January 19, 2011 by Ross Runkel at LawMemo

The US Supreme Court unanimously decided that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy.

NASA v. Nelson (US Supreme Ct 01/19/2011)

Current employees of contractors working at NASA's Jet Propulsion Laboratory must complete a standard background check (which has long been used for prospective federal civil servants). The process includes a questionnaire asking whether the employee has "used, possessed, supplied, or manufactured illegal drugs" during the past year; if so, the employee must supply information about "treatment or counseling received." Employees must also sign a release allowing the Government to inquire of references about "any reason to question" the employee's "honesty or trustworthiness."

The Court held that the background checks are similar to those used in the public and private sectors for many years, and are reasonable in light of the Government interests at stake. The Court rejected arguments that the Government must show that the questions are "necessary" or are the least restrictive means of furthering its interests.

Any information collected is protected from unwarranted disclosure by the Privacy Act.



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NASA v. Nelson: Employee background checks vs. privacy at the Supreme Court
October 04, 2010 by Ross Runkel at LawMemo

On Tuesday the US Supreme Court will hear oral arguments in National Aeronautics and Space Administration [NASA] v. Nelson.

[Details and briefs]
[Detailed analysis from SCOTUSblog]

Nelson requested a preliminary injunction to prevent implementation of the employer's requirement for in-depth background investigations of "low risk" employees of federal contractors. The trial court denied the request for a preliminary injunction. The 9th Circuit reversed. The US Supreme Court granted certiorari to review the 9th Circuit judgment.

Given the open-ended and highly private questions authorized by the investigation which did not appear narrowly tailored to any legitimate government interest, the court concluded the trial court erred in finding that Nelson was unlikely to succeed on his informational privacy claim. The court stated the balance of hardships tipped sharply towards Nelson, who faced a stark choice - either violation of his constitutional rights or loss of his job.

Question Presented in the petition for certiorari:

Respondents are contract employees working at the Jet Propulsion Laboratory, a multi-billion-dollar federal research facility. Like all federal contract employees requiring long-term access to federally controlled facilities and information systems, they are required to undergo background checks. Respondents object to these background checks because, in their view, the government’s use of standard forms to collect employment-related information about them would violate their constitutional right to informational privacy. The court of appeals agreed with respect to two inquiries on the standard background-check forms. The questions presented are:

1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.

My view:

Expect the Supreme Court to reverse the 9th Circuit's judgment. This case is essentially a facial attack on NASA's policy, without a showing of tangible harm to the contract employees. In that posture, the Supreme Court will not want to support an injunction against NASA.

Many observers are expecting the Court to make important pronouncements about individual privacy in the face of an employer's background investigations. I expect this will not happen. Any possible harm to any individual is, at this point, pretty hypothetical.



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Search of police pager text messages was reasonable, so no 4th amendment violation
June 17, 2010 by Ross Runkel at LawMemo

As expected [here], the US Supreme Court held today that the City's search of a police pager text messages was reasonable, so there was no 4th amendment violation by the City.

City of Ontario v. Quon (US Supreme Ct 06/17/2010).

The City provided alphanumeric pagers to police officers on the SWAT team. After Sgt. Quon exceeded his allotted usage limit, the City acquired transcripts from the pager provider and discovered that Quon had used the pager for personal purposes and that some messages were sexually explicit.

Quon and those with whom he had exchanged messages sued claiming an unlawful search in violation of the 4th amendment. The trial court found that officers had a reasonable expectation of privacy in the text messages, but that the search did not violate the 4th amendment. The 9th Circuit reversed, holding that the search was unreasonable as matter of law.

The US Supreme Court reversed, holding that the search of Quon's text messages was reasonable and did not violate the 4th amendment. The search was motivated by a legitimate work-related purpose, and it was not excessive in scope.

(The Court assumed - without deciding - that Quon had a reasonable expectation of privacy.)



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City of Ontario v Quon: Transcript of oral argument
April 19, 2010 by Ross Runkel at LawMemo

Details on this case are HERE.

Transcript of today's argument is HERE.

My view:

This is a search and seizure case. Initial writings about the case have focused on whether police officers have a "reasonable expectation of privacy" in text messages sent on City-provided pagers.

The oral argument teased out another, and probably fatal issue for the officers: Whether the City's search was "reasonable" under the fourth amendment.

I'm predicting the City will win this, either because the officers had no reasonable expectation of privacy, or because the City's search was reasonable, or some combination of both.

A decision is expected by July.



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City of Ontario v Quon: Details and briefs
April 17, 2010 by Ross Runkel at LawMemo

On Monday, April 19, the US Supreme Court will hear oral arguments in City of Ontario v. Quon.

Here are the questions presented:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

Here are the briefs that have been filed:




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Supreme Court Review of Quon May Provide Important Guidance for Private Employers
December 16, 2009 by Ross Runkel at LawMemo

Monday the US Supreme Court granted certiorari in City of Ontario v. Quon, on the issue of whether police officers have a reasonable expectation of privacy in text messages transmitted over employer-issued pagers.

Writing in Littler Mendelson's "Workplace Privacy Counsel" blog, Philip L. Gordon says the decision in this public sector case "likely will provide important guidance for employers on at least three issues."

[Blog]



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Text message privacy at the Supreme Court
December 14, 2009 by Ross Runkel at LawMemo

The US Supreme Court has agreed to decide whether there is a reasonable expectation of privacy in text messages transmitted on a police SWAT pager.

City of Ontario v. Quon - Certiorari granted December 14, 2009.
[Details, briefs]

The City provided alphanumeric pagers to police officers on the SWAT team. After Sgt. Quon exceeded his allotted usage limit, the City acquired transcripts from the pager provider and discovered that Quon had used the pager for personal purposes and that some messages were sexually explicit. Quon and those with whom he had exchanged messages sued claiming an unlawful search in violation of the 4th amendment.

The trial court found that officers had a reasonable expectation of privacy in the text messages, and that liability hinged on whether the police chief's intent was to uncover misconduct rather than to discover the efficacy of the usage limit. A jury decided that the police chief's intent had to do with the usage limit, so the defendants were absolved of liability.

The 9th Circuit reversed, holding that the search was unreasonable as matter of law, so the police chief's intent never should have gone to trial. "[T]hey had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope." The 9th Circuit also denied a petition for rehearing en banc, over the dissent of seven judges.

The US Supreme Court granted certiorari on December 14, 2009 to review the 9th Circuit judgment.

Case below: Quon v. Arch Wireless (9th Cir 06/18/2008); order denying rehearing en banc, dissent from order, concurring in order



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Employer required to disgorge employee's emails to her attorney
June 28, 2009 by Ross Runkel at LawMemo

Marina Stengart sued her former employer for violation of the New Jersey Law Against Discrimination (LAD). The trial court denied Stengart's motion for temporary restraints with respect to attorney-client privilege. The New Jersey Appellate Division reversed. Stengart v. Loving Care Agency (New Jersey App Div 06/26/2009)

The issue was whether the employer's workplace regulations converted an employee's emails with her attorney -- sent through the employee's personal, password-protected, web-based email account, but via her employer's computer -- into the employer's property.

The court rejected the employer's claimed right to the employee's emails to her attorney, finding the policies supporting the attorney-client privilege outweighed the employer's interest in enforcement of its workplace rule.

As the court put it, "we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney."



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Employer snooped email; no statutory damages without actual damages
March 20, 2009 by Ross Runkel at LawMemo

Bonnie Van Alstyne sued her employer, alleging that the employer and its president violated the Stored Communications Act (SCA) by illegally accessing her personal AOL email account.

This all came to light when Van Alstyne and the employer were suing each other over alleged sexual harassment and some alleged business torts. The employer produced the emails at her deposition.

She prevailed after a jury trial, and was awarded statutory damages (in the form of a $1,000 statutory minimum for each of multiple violations), punitive damages, and attorney fees.

The 4th Circuit reversed as to the statutory damages, but otherwise affirmed.
Van Alstyne v. Electronic Scriptorium (4th Cir 03/18/2009).

As the court reads the statute, she cannot recover the statutory damages unless she proves some actual damages.

However, she can recover both punitive damages and attorney fees without proving any actual damages.

The SCA provides that a person commits a criminal offense when that person “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility,” and thereby “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” 18 USC Section 2701(a)(1-2).

Section 2707 of that Act provides a private cause of action for any “person aggrieved” by violation of Section 2701. Section 2707 provides that a court may award “actual damages” resulting from such a violation, but “in no case shall a person entitled to recover receive less than the sum of $1,000.”

Workplace Prof Blog also has a comment on this case.



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Oh, that 9th Circuit. Aren't they amusing?
January 28, 2009 by Ross Runkel at LawMemo

A three-judge panel decided that a public employer violated employees' 4th amendment rights by reading personal and sexually explicit text messages sent on employer-issued pagers.

Yesterday the whole 9th Circuit denied a petition for an en banc rehearing. That's not a major event, as it happens more often than not.

The problem is that eight of the judges wrote two new opinions, and it appears that the real problem is that the judges cannot agree on what the facts of the case are.

The facts seem to be that a police department issued pagers to members of a SWAT team to use for official business, but informally the team members were allowed to send personal messages if they reimbursed the department. The department had reason to believe the employees were violating the rules, so somebody got transcripts of the text messages and read them.

The three-judge panel held that the employees had a reasonable expectation of privacy, and that the search was unreasonable in its scope.

However, if you read the two new opinions, you have to walk away wondering, "Are all the judges reading the same record? Why is it that they cannot agree on what the facts were?"

Quon v. Arch Wireless (8th Cir 01/27/2009)
Order denying rehearing
Concurring
Dissenting
Original panel decision (06/18/2008)



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Personnel files, reputation, and the constitution
March 16, 2007 by Ross Runkel at LawMemo

"Stigma plus" without publication is what it is called. The result: a public employer violates the due process clause by putting damaging information into a personnel file without giving the employee a name-clearing hearing.

Sciolino sued his public employer (a city), claiming a deprivation of his 14th Amendment liberty interests without due process. The trial court dismissed the case. The 4th Circuit vacated and remanded.

Sciolino v. Newport News (4th Cir 03/12/2007)

Sciolino alleged that he was deprived of his liberty interests in his reputation and ability to obtain future employment, when the employer placed damaging information in his personnel file without a name clearing hearing. The 4th Circuit concluded that Sciolino did not allege the likelihood that prospective employers or members of the public would see the damaging information, and that the trial court thus did not abuse its discretion in dismissing the complaint. The court also concluded, however, that the trial court abused its discretion when it denied Sciolino’s motion to amend his complaint to include such an allegation.

To state this type of liberty interest claim (often called a “stigma plus” claim), a plaintiff must allege that the charges against him (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.

The issue in this case involved the second (“dissemination”) element. Sciolino argued that the mere possibility of publication is enough to satisfy this element. Not surprisingly, the employer argued that actual publication was required.

The trial court opted for a “likelihood of publication” approach. There is a split among the circuits on this issue - resulting in several different approaches. The court concluded that an employee sufficiently states the second element when he alleges that prospective employers are likely to see the stigmatizing allegations. The court noted that if actual dissemination were required, “the information would have already been communicated to a potential employer, the employee’s job opportunities foreclosed, and his reputation damaged before any possibility for a name-clearing hearing.”

My view: Seems like a candidate for US Supreme court review. An important and recurring question under the constitution, plus a solid split among the circuit courts.



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Drinking in a public place while in uniform
June 17, 2006 by Ross Runkel at LawMemo

Postal Service regulations forbid drinking in a public place while in uniform. OK. What's a "public place"?

How about a Veterans of Foreign Wars (VFW) post?

The USPS thought so when it fired Gary Gose.

Understand that the VFW is a private club, and in order to get in to the place where Gose was drinking you had to be a member.

Undaunted, the USPS proposed that a "public place" is anywhere that Postal Service customers can be found.

Not so, says the US Court of Appeals for the Federal Circuit. That's an unreasonable interpretation. Gose v. US Postal Service (Fed Cir 06/14/2006).

So Gose is back carrying your mail.

He's probably not at the VFW. It seems that all of this got started when 30 people signed a complaint letter. I assume it was signed by folks who drink without being in uniform.



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Whitman v. Department of Transportation - more briefs
May 22, 2006 by Ross Runkel at LawMemo

Waiting for a decision in Whitman v. Department of Transportation? Keep waiting. The US Supreme Court heard arguments on December 5, then asked the parties to file supplemental briefs "addressing the applicability of Darby v. Cisneros, 509 U.S. 137 (1993)."

Here are the briefs, filed May 15, 2006:

[Previous briefs]

Whitman's federal court suit claimed that the Federal Aviation Administration (his employer) tested him for substance abuse disproportionately, and thus violated the first amendment and the federal statute on mandatory drug testing. The 9th Circuit held that federal courts had no subject matter jurisdiction, and the US Supreme Court is reviewing that decision.

The 9th Circuit reasoned that the FAA Management System, including certain provisions of the Civil Service Reform Act (CSRA), governs FAA employees' employment rights and generally does not allow federal court suits. The CSRA requires collective bargaining agreements to include procedures for resolving "grievances," and defines "grievance" broadly to include Whitman's claims. Before 1994 CSRA provided that the collectively bargained procedures "shall be the exclusive procedures for resolving grievances."

The 1994 amendment provided that the collectively bargained procedures "shall be the exclusive administrative procedures for resolving grievances." [emphasis added.]

Although the Federal and 11th Circuits have held that the 1994 amendment established an employee's right to seek a judicial remedy, the 9th Circuit said those cases are wrong because the 1994 amendment "does not constitute an express grant of federal court jurisdiction."



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Discharge for having firearms on company property
February 14, 2006 by Ross Runkel at LawMemo

An inevitable clash between a constitutional right to bear arms and a company policy forbidding possession of firearms in the parking lot. The company wins. Bastible v. Weyerhaeuser (10th Cir 02/13/2006)

Employees got fired when a vehicle search uncovered firearms. The company had a no-firearms policy, and the employees argued they had a constitutional right that was violated.

The employees argued that their discharge from employment violated Oklahoma public policy as declared in the Oklahoma constitutional provision on the right to keep and bear arms.

Just one problem with that argument. The Oklahoma constitution allows the legislature to regulate "the carrying of weapons," and a statute specifically allows employers to "control the possession of weapons" on property they own or control.

Here's how the 10th Circuit put it:

The district court described this issue as "whether a public policy cause of action for wrongful discharge may be maintained by Plaintiffs based upon the right to keep arms espoused by the Oklahoma Constitution." Order at 23, Appellants' App. at 627.(11) As the district court acknowledged, Oklahoma law recognizes a public policy exception to the otherwise virtually unfettered ability of an employer to terminate an at-will employee. "[T]he circumstances which present an actionable tort claim under Oklahoma law is where an employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy." Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989). The Oklahoma Supreme Court has, however, cautioned that this "unique tort" applies "to only a narrow class of cases and must be tightly circumscribed." Clinton v. State ex rel. Logan County Election Bd., 29 P.3d 543, 545 (Okla. 2001). While the Oklahoma courts have not addressed the precise question of whether there is a clear and compelling public policy involving the right to bear arms, such that an at-will employee(12) may not be terminated when he exercises that right, we are confident that those courts would not embrace that view. As indicated, both the Oklahoma Constitution and the Oklahoma courts recognize that the right to bear arms is not unlimited, and, indeed, may be regulated. We agree with the district court that "[g]iven the finding by [the Oklahoma Supreme] Court that the right to keep arms is not unfettered, establishing a wrongful discharge tort for exercising a statutorily sanctioned restriction on the right would be counterintuitive." Order at 24, Appellants' App. at 628.


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If you wanted a lie detector test, then don't complain
January 22, 2006 by Ross Runkel at LawMemo

Don't ask your employer to give you a polygraph test and then later claim that giving the test violated the federal Employee Polygraph Protection Act (EPPA).

That's basically what Gary Lee Watson did.

When Watson was discharged for allegedly stealing from the employer, his union suggested to the employer that Watson be returned to his job on the condition that he successfully pass a polygraph test. The employer agreed.

Later Watson sued both his employer and his union claiming a violation of the EPPA, but the courts threw out the suit.

The EPPA provides that (subject to certain exceptions) an employer may not "directly or indirectly ... require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test." 29 USC Section 2002(1).

The 11th Circuit held that "when [a] ... polygraph test ... [is] offered to an employee pursuant to a request ... by the employee or his or her agent in order to benefit the employee by providing an opportunity to prove his or her innocence [of a suspected property crime against the employer], then the employer has not violated Section 2002(1)." Watson v. Drummond Co (11th Cir 01/20/2006)

The court also concluded that the union was not an "employer" under the EPPA.



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Cintas employees vs. unions
January 01, 2006 by Ross Runkel at LawMemo

Unions use car license numbers to get addresses of non-union employees they want to talk to. A Wall Street Journal article and posts by Workplace Prof Blog and Thoughts From a Management Lawyer have popularized a statutory privacy issue I talked about on June 9, 2005 (Privacy vs. union organizing) which I repeat here:

A statutory right to privacy may block a traditional union organizing tool. Union organizers often need a list of employee names and addresses so they can visit the employees at home and talk them into joining. One way to get a list is to take down license plate numbers in the employer's parking lot and run them through the state motor vehicle records.

This practice probably is unlawful due to the federal Driver's Privacy Protection Act of 1994 (DPPA) which forbids individuals from obtaining and using personal information from a motor vehicle record for any purpose other than purposes permitted by the DPPA. The minimum statutory damages are $2,500.

When UNITE tried to organize an employer, some employees sued under DPPA. And now the federal district court for the Eastern District of Pennsylvania has certified a class of plaintiffs consisting of:

All persons whose license plate numbers were used by UNITE, directly or indirectly, individually or jointly, as part of an effort to knowingly obtain, use and/or disclose personal information from motor vehicle records between July 1, 2002 and August 2, 2004.

The case is Pichler v. Unite, and the 75-page opinion is [here].

My view: This case probably spells the end of this method for getting names and addresses of employees.



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Privacy vs. union organizing
June 09, 2005 by Ross Runkel at LawMemo

A statutory right to privacy may block a traditional union organizing tool. Union organizers often need a list of employee names and addresses so they can visit the employees at home and talk them into joining. One way to get a list is to take down license plate numbers in the employer's parking lot and run them through the state motor vehicle records.

This practice probably is unlawful due to the federal Driver's Privacy Protection Act of 1994 (DPPA) which forbids individuals from obtaining and using personal information from a motor vehicle record for any purpose other than purposes permitted by the DPPA. The minimum statutory damages are $2,500.

When UNITE tried to organize an employer, some employees sued under DPPA. And now the federal district court for the Eastern District of Pennsylvania has certified a class of plaintiffs consisting of:

All persons whose license plate numbers were used by UNITE, directly or indirectly, individually or jointly, as part of an effort to knowingly obtain, use and/or disclose personal information from motor vehicle records between July 1, 2002 and August 2, 2004.

The case is Pichler v. Unite, and the 75-page opinion is [here].

My view: This case probably spells the end of this method for getting names and addresses of employees.



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